Andhra HC (Pre-Telangana)
S.Apsara vs The State Of Andhra Pradesh, Rep. By Its ... on 19 March, 2014
Author: Dama Seshadri Naidu
Bench: Dama Seshadri Naidu
THE HONBLE SRI JUSTICE DAMA SESHADRI NAIDU W.P.No.21462 of 2006 19-03-2014 S.Apsara..... PETITIONER The State of Andhra Pradesh, rep. by its Secretary to Government, School Education Department, Secretariat, Hyderabad and others.....RESPONDENTS Counsel for the petitioner: Sri T.S.Anand Counsel for respondents: Government Pleader for Education <Gist: >Head Note: ?Cases referred: 1.2013(5) ALD 380 2.AIR 1952 SC 16 3.(1880) 5 AC 214 4.(1986) 2 SCC 679 5.1995(1) ALT 448 THE HONOURABLE SRI JUSTICE DAMA SESHADRI NAIDU WRIT PETITION No.21462 of 2006 ORDER:
The present Writ Petition is filed questioning the action of the respondents in not ratifying the appointment of the petitioner in the existing aided vacancy by extending the benefit of relaxation given to similarly situated persons, though the petitioner has been working in the existing vacancy from 25.06.2001, apart from seeking certain consequential relief.
It being the second round of litigation, the facts in brief are that the petitioner possessed all the necessary qualifications to be appointed Grade-II Hindi Pandit. On 25.06.2001, the 5th respondent school appointed the petitioner in the vacancy, which arose owing to the promotion of the incumbent Hindi Pandit in the same school. Having joined the service, the petitioner made numerous representations to the authorities to ratify her appointment and to absorb her in the aided vacancy. Despite the recommendation of the School Management, when the authorities had not considered the ratification of her appointment, the petitioner was constrained to file W.P.No.21688 of 2004, which was disposed of on 26.11.2004 by this Court with a direction to the respondent authorities to pass appropriate orders on the proposals of the 5th respondent school for absorption of the petitioner in the aided post in accordance with the rules.
Despite the time frame given by this Court in its Order dated 26.11.2004 in W.P.No.21688 of 2004, when the authorities did not pass appropriate orders with regard to the absorption of the petitioner in the aided post, the petitioner seems to have committed the cardinal sin of invoking the contempt jurisdiction of this Court twice over initially by filing C.C.No.715 of 2005, and later by filing C.C.No.25 of 2007. Unwittingly, this hapless petitioner provoked the enormous ego of the officialdom. We can see how the authorities have put paid to the hopes of the petitioner and beat her to a pulp in the game of technicalities with prevarications and half-truths. We all sincerely believe that contempt is a corrective devise and a curative mechanism of compelling the officers to read the writing on the wall. Not to be.
Moving further, if we see, pending the Contempt Proceedings, the 5th respondent school once again reiterated its request for regularization of petitioners services. Eventually, after certain intra-departmental developments, the learned Government Pleader reported to the Court in C.C.No.715 of 2005 that the orders of this Court with regard to absorption of the petitioner had been complied with. Accordingly, the contempt case was closed through Orders dated 22.08.2005.
The school management was artless in its approach. It bona fide believed the representation of the respondent authorities in the contempt proceedings that the orders of this Court had been complied with. It never knew that it was only a technical compliance, and that it was no compliance at all. Thus, believing that the petitioners services stood regularized, the 5th respondent School submitted the salary bills of the petitioner for the period from 25.06.2001 to 31.10.2005, for sanction. Those bills, however, were returned by the 4th respondent i.e., District Educational Officer, through his Proceedings dated 16.02.2006 that the approval of the petitioners appointment into Grade-II Hindi Pundit post had not yet been ratified by the Regional Joint Director of School Education, Guntur, the 3rd respondent, who is the competent authority in respect of the High Schools. Aggrieved thereby, the petitioner filed the present Writ Petition.
Though the petitioner in her affidavit initially stated that the Writ Petition was filed questioning the action of the respondents in not admitting the petitioner to grant-in-aid in the existing vacancy, in which she had been working since 25.06.2001, in the prayer portion, the petitioner sought a declaration that the proceedings of the D.E.O, Prakasam District, dated 16.02.2006, whereby the salary bills of the petitioner from 25.06.2001 to 31.10.2005 had not been processed on the premise that the approval of appointment had not yet been ratified, be declared as illegal and arbitrary. The petitioner also sought consequential directions to the authorities to pay the arrears of the salary with all other consequential benefits. I propose to dispose of the writ petition by taking a comprehensive view of the issue, given the earlier rounds of litigation, thereby moulding the relief, instead of maintaining a technical adherence to the prayer or relief sought.
In the above factual backdrop, the learned counsel for the petitioner has contended that the petitioner possessed every requisite qualification and that initially through Proceedings dated 25.06.2001, the 5th respondent management appointed her in the existing vacancy of aided Grade-II Hindi Pandit. The learned counsel has stated that previously the authorities relaxed Rule 15 of G.O.Ms.No.524, Education, dated 20.12.1988 and accorded permission to different aided schools for absorption of teachers. Relaxation of recruitment norms under Rule 12 (8) of G.O.Ms.No.1, Education, (PS-2) Department dated 01.01.1994 has been, contended the learned counsel, extended to many other similarly placed persons, but it has inexplicably been denied to the petitioner.
The learned counsel has further submitted that when the petitioner had a grievance that the directions of this Court in its Order dated 26.11.2004 in W.P.No.21688 of 2004 had not been complied with, a Contempt Case, which eventually came to be closed based on the strength of the statement made by the learned Government Pleader before the Court that the directions regarding the regularization of the services of the petitioner had been complied with. The learned counsel has specifically drawn the attention of this Court to the proceedings dated 30.07.2005 issued by the 4th respondent that the said authority approved the appointment of the petitioner and duly intimated to the 3rd respondent in this regard. He has also further brought to the notice of the Court that as a natural corollary to the Proceedings dated 31.07.2005 issued by the 4th respondent, the 5th respondent School issued Proceedings dated 01.08.2005 regularizing the appointment of the petitioner as Grade-II Hindi Pandit with effect from 25.06.2001. According to the learned counsel, even the Contempt Case was eventually closed based on those developments only.
The learned counsel for the petitioner has strenuously contended that once the 4th respondent has approved the absorption, the ratification by the 3rd respondent is a mere technicality. In fact, based on the Proceedings, dated 30.07.2005, of the very 4th respondent, even the 5th respondent sent the salary bills to the 4th respondent for sanction. The said authority, however, contradicted his own orders, sent back those bills taking shelter under the excuse that the 3rd respondent, the Regional Joint Director of School Education, was yet to rectify the said approval of appointment. The learned counsel has contended that there is no justification on the part of the authorities to negate their own orders and take recourse to technical excuses to stultify the judicial directives of this Court and also the statutory right of the petitioner to be absorbed into the regular service. Accordingly, the learned counsel for the petitioner has urged this Court to allow the Writ Petition by giving the necessary directions to the respondent authorities in this regard.
Per contra, the learned Government Pleader has, in tune with the contentions raised in the Counter Affidavit filed by the 3rd respondent, submitted that in obedience to the directions issued earlier by this Court, the 3rd respondent, through his Proceedings dated 02.09.2005, directed the 4th respondent to submit a detailed report on the approval of the petitioners appointment as Grade-II Hindi Pundit. Based on the proposal sent by the 4th respondent, the 3rd respondent has examined the issue in terms of the provisions of A.P. Educational Institutions (Establishment, Recognition, Administration and Control of Schools under Private Management) Rules, 1993.
The learned Government Pleader has further contended that when the issue was examined, it came to light that the very appointment of the petitioner in 2001 was in violation of the relevant rules of recruitment prescribed in G.O.Ms.No.1, Edn, dated 01.01.1994. According to the learned Government Pleader, the 4th respondent is not the competent authority to approve the appointment of the petitioner. As such, his Proceedings dated 30.07.2005, on which the petitioner placed much reliance, did not have any enforceability. Drawing the attention of this Court to the Proceedings dated 18.12.2006 issued by the 3rd respondent, the learned Government Pleader has stated that the appointment of the petitioner into the aided Grade-II Hindi Pandit post in 5th respondent school was refused to be approved on the ground that her initial entry into service was illegal, and as such, she was not entitled to have any regularization of her services or ratification thereof. Summing up his submissions, the learned Government Pleader has contended that the petitioners services cannot be approved to be absorbed into aided vacancy in the light of the statutory limitations in G.O.Ms.No.1 and also owing to the fact that there is a ban imposed against the recruitment of teacher into aided category.
Heard Smt. A.Gayarthri Reddy, the learned counsel for the petitioner and the learned Government Pleader for the respondents, apart from perusing the record.
As has been indicated at the beginning, this is a second round of litigation. Initially, the petitioner filed W.P.No.21688 of 2004 questioning the action of the respondents in not absorbing the petitioner into the aided post of Grade-II Hindi Pandit in the 5th respondent School on a par with other similarly situated persons. This Court through its Order dated 26.11.2004 disposed of the writ petition with the following direction:
Therefore, on the request of the counsel for the petitioner, the writ petition is taken up for disposal and a direction is given to the respondents to pass appropriate orders on the proposals of the 5th respondent for absorption of the petitioner in aided post of Hindu Grade-II in the 5th respondent school in accordance with the Rules within a period of eight weeks from the date of receipt of a copy of this Order.
Before considering the question of compliance with the directions of this Court by the respondent authorities, it is appropriate to examine the initial appointment of the petitioner into the 5th respondent school. Based on the application dated 01.05.2001 made by the petitioner, the 5th respondent School appointed her as Grade-II Hindi Pandit on 25.06.2001 in the existing aided vacancy, which was caused owing to the promotion of the incumbent teacher as Grade-I Hindi Pundit in the same school.
When the petitioner represented to the Management of the 5th respondent School and also the respondent authorities, she has cited specific instances of the relaxation of Rule 15 of G.O.Ms.No.524, Education, dated 20.12.1998, in other cases. In further elaboration thereof, it is to be appreciated that once Sri S. Prabhavathi, a Teacher, S.V.E.S. High School, Vidyanagar, Hyderabad, who was initially appointed in an unaided post, had her services regularized in aided post of Grade-II Hindi Pandit, on account of the relaxation provided through Government Memo No.19868/PS-1/2001-2, dated 23.11.2001.
The petitioner has also brought on record another instance of absorption of other teachers into aided vacancy by relaxing Rule 12 (8) of G.O.Ms.No.1, Education (PS-2) Department, dated 01.01.1994. As a matter of specific instance, the petitioner has cited the example of Smt P.Hema, a Hindi Pandit, A.V. High School, Kattelamandi, Hyderabad. While recommending for the absorption of the petitioner into aided vacancy through Proceedings in R.C.No.1129/B4/2003, dated 30.07.2005, the 4th respondent has observed as follows:
Before going through all the above material, the undersigned has also gone through the relevant rules and regulations embodied in G.O.Ms.No.1, Education ( PS-2), dated 01.01.994. On perusal of all the material on record, prevailing rules, order of Honble High Court, instructions of Director of School Education, Hyderabad and also the opinion of Government Pleader and Contempt Notice of Honble High Court, the undersigned feel that there is imminent need of Grade-II Hindi Pandit in A.B.M. High School, Markapur as per work load and that she is working in the school since 25.06.2001 without any brake of service and that the request of the candidate deserves positive consideration.
The undersigned had also gone through the precedents in this regard. Even as could be seen from the orders of Honble High Court there were many cases of similar nature were considered by the authorities for absorption from unaided to aided existing post. One case was also referred in the order. So as could be seen from the precedents similar cases of this nature were considered by the authorities in positive way. To avoid unpleasant situation that arose out of contempt case, the undersigned feels that it is just and necessary to consider the case of the petitioner.
In obedience to the orders of Honble High Court, the undersigned is inclined to approve the appointment of Smt S. Apsara as Grade-II Hindi Pandit in A.B.M High School, Markapur. Accordingly approved. This order is submitted to Regional Joint Director of School Education, Guntur for information.
(emphasis added) Prior to issuing the above proceedings, the 4th respondent, in fact, addressed a letter in R.O.C.No.1129/B4/2003, dated 21.01.2005 to the Director of School Education, stating that there is a need of Grade-II Hindi Pandit in the 5th respondent school as per the work load and that the petitioner had been working in the school with effect from 25.06.2001. In this regard, he has also stated that the Deputy Educational Officer, Markapur, already submitted his recommendations through his report in ROC.No.5/2005. Having thus felt the need of filling up the post by ratifying the appointment of the petitioner in the existing sanctioned vacancy, the 4th respondent requested the Director of School Education to issue the necessary instructions or to pass the necessary orders on the proposal submitted by the correspondent of the 5th respondent school for absorption of the petitioner as Grade-II Hindi Pandit with effect from 25.06.2001. Curiously, in response to the letter dated 21.01.2005 of the 4th respondent, the Director of School Education, through his communication, dated 04.04.2005, responded in the following manner:
The attention of the District Educational Officer, Prakasam at Ongole is invited to the reference read above and he is informed that no instructions on this issue will be issued from this office as the Honble High Court has directed him to pass appropriate orders.
Interpreting the Order dated 26.11.2004 of this Court in W.P.No.21688 of 2004, a portion of which has already been extracted supra, the Director of School Education has felt that this Court has given a direction to the 4th respondent only and that he alone is required to pass appropriate orders as per the rules. In the end, it is stated that this has the approval of the Direction of School Education, A.P, Hyderabad. Indeed, only consequent to the said communication dated 04.04.2005 of the Director of School Education, the 4th respondent issued Proceedings in ROC.No.1129/B4/2003, dated 30.07.2005. Having approved the initial appointment of the petitioner into the existing vacancy of Grade-II Hindi Pandit, the 4th respondent submitted those Proceedings to the 3rd respondent for ratification.
It is pertinent to observe that the Proceedings have also been marked to the 5th respondent School, apart from submitting them to the 3rd respondent for ratification. Acting on the approval of the 4th respondent, the 5th respondent School issued consequential Proceedings dated 01.08.2005 to the following effect:
The District Educational Officer, Prakasam District, Ongole pleased to approve the appointment of Smt S. Apsara as Grade-II Hindi Pandit in A.B.M. High School, Markapur, in his Proceedings R.C.No.1129/B4/2003, dt. 30.07.2005. As per the Orders of the Honble High Court in W.P.No.21688/2004, dt. 26.11.2004, Proceedinigs of the Director of School Education A.P., Hyderabad in L.D. is No.367/V.E.2/2005, dt. 04.04.2005 and Legal Opinion of the Government Pleader Prakasam District Ongole dated 25.05.2005.
Hence, Orders issued regularizing the appointment of Smt S. Apsara, Grade-II Hindi Pandit working in A.B.M High School, Markapur with effect from 25.06.2001.
It is very relevant to observe that the contempt proceedings initiated by the petitioner in C.C.No.715 of 2005, alleging that the Order dated 26.11.2004 in W.P.No.21688/2004 had not been complied with, came to be closed through Orders dated 22.08.2005, only based on the development that has taken place subsequent to filing of the Contempt Case. In fact, as could be seen from the above, the Director of School Education, A.P., has declared in advance that the orders to be passed by the 4th respondent have his approval. Essentially, based on the said delegation of power, the 4th respondent approved the appointment of the petitioner and sought the ratification from the Regional Joint Director of School Education, the 3rd respondent. In turn, based on the communication sent by the 4th respondent, even the management of the 5th respondent School issued Orders of confirmation to the petitioner. Under those circumstances, this Court closed the Contempt Proceedings.
In the above factual backdrop, the Order of the 3rd respondent dated 18.12.2006 is required to be interpreted. In fact, when the present Writ Petition was filed by the petitioner, this Court on 24.11.2006 in W.P.M.P.No.27209 of 2006 issued an interim direction to the 3rd respondent to consider the proposal for ratification submitted by the 4th respondent in Proceedings dated 30.07.2005 and pass appropriate orders within two weeks from the said date.
Complaining of non-compliance with the interim direction dated 24.11.2006 in the present Writ Petition, the petitioner once again filed a Contempt Case in C.C.No.25 of 2007. Under those circumstances, the 3rd respondent issued the impugned Proceedings in ROC.No.5899/ A6/2004, dated 18.12.2006. From the Order of 3rd respondent, who rejected the proposal of the District Educational Officer to rectify the absorption of the petitioner into aided category, two things emerge: (1) The initial appointment of the petitioner is in violation of the procedure prescribed in G.O.Ms.No.1, Edn., dated 01.01.1984 and (2) Her appointment was made during the ban period.
On the issue of the alleged violation of the procedure prescribed in G.O.Ms.No.1, the 3rd respondent has highlighted the fact that since the 4th respondent is not the competent authority to issue the proceedings concerning the regularisation or the ratification of the appointment of the petitioner, the question of 3rd respondent entertaining any request for approval from the 4th respondent does not arise.
In the impugned proceedings, dated 18.12.2006, having extracted the procedural parameters concerning the appointment of the teaching faculty in the aided vacancies, the 3rd respondent has observed that the 4th respondent has not examined the proposals with regard to the appointment made by the correspondent in respect of the petitioner in accordance with the rules provided in G.O.Ms.No.1, dated 01.01.1994 and also further instructions received from the 4th respondent. He has further observed that the 4th respondent is not the competent authority to pass an order of absorption/appointments/promotions in secondary schools and that the 4th respondent himself has taken his own decisions and issued approval orders based on the instructions issued from the Director of School Education, Andhra Pradesh, Hyderabad, through Proceedings dated 04.04.2005.
In any event, the contradictions in the stated positions of the different hierarchical officials are evident. On one hand, the Regional Joint Director of School Education, the 3rd respondent, states that the District Educational Officer, the 4th respondent, is not competent to pass an order regarding absorption/ appointments/ promotions in the secondary schools; on the other hand, the Director of School Education, a higher authority, reads, or rather misreads, the direction of this Court dated 24.11.2006 and directs the 4th respondent that he alone should pass the necessary orders and that that it has his approval. The 3rd respondent also shows an accusing finger towards the 4th respondent and insinuates that he issued approval orders in his Proceedings dated 31.07.2005 when the ban was subsisting on recruitments into aided post. Eventually, the 3rd respondent concludes that the role of the 4th respondent would be to submit a detailed proposal to him and he alone is competent either to approve or reject the case as per the rules.
It can be observed that the proceedings of the 3rd respondent are in the face of the contrary opinion expressed and directions issued by the Director of School Education. Eventually, the 3rd respondent rejected the proposal to ratify the absorption of the petitioner in the following manner:
The contention of the petitioner is that he is working as Grade-II Hindi Pandit in the 5th respondent school since 25.06.2001, but the 4th respondent has not passed any appropriate orders on the proposal for absorption submitted by the 5th respondent and appropriate decision has to be taken by the respondents as per the Rules.
In this context, it is appropriate to examine the ratio of the judgement of this Court in Netaji Memorial Educational Society, Vijayawada, Krishna District v. Government of Andhra Pradesh and Others . Given its importance and relevance, it is appropriate to quote extensively from the said judgement. In paras 20 to 22 and 32 of the said judgement, his Lordship Sri Justice K. G. Shankar has observed as follows:
20. I am not able to appreciate this contention of the learned Government Pleader. The very scheme of 1993 Rules, passed through G.O.Ms.No.1, Education (P.S. 2), dated 01.01.1994 was brought out to enable the private institutions to run their schools effectively charging reasonable fee from the children.
It is not open for the Government to claim that despite the impugned Memo, the private schools could have filled up the vacancies with unaided staff. The impugned Memo certainly restricts the right of the private institutions to fill up the vacancies of grant-in-aid posts which ultimately tinkers with Article 21-A of the Constitution of India. Article21-A creates an obligation on the State to provide free and compulsory education to the children between the age of 6 years and 14 years. In view of Article- 45which obligates the State to provide education till the completion of 6 years of age and in view of Article 21-A which mandates the State to provide free and compulsory education for children between the age of 6 years and 14 years, when the Government is not capable of maintaining institutions to impart education to every child, Government cannot take away the grant-in-aid that was already conferred upon some posts in the schools. What the impugned Memo has been attempting to do is withdrawing the grant-in-aid scheme slowly and step-by-step whenever an employee retired from service. I am afraid that such a step on the part of the Government is violative of Article 21-A of the Constitution of India.
21. Chapter VIII of the Education Act, 1982 deals with grant- in-aid scheme. Section 46 of Education Act empowers the Government to withhold, reduce, or withdraw any grant payable to any educational institution depending upon the efficiency and the financial condition of the institution after according an opportunity to the institution to explain why the grant cannot be withdrawn. Sec. 46(2) envisages that the grant-in-aid can be withheld or reduced or withdrawn in the event the educational institution did not maintain the standards including failing to fulfil the conditions of the grant. It may, however, be noticed that Sec. 46 does not speak about a ban, but speaks about withholding, reducing or withdrawing the aid to individual institutions.
22. It is the contention of the petitioners that no reason was assigned why a general ban was clamped virtually withholding the grant-in-aid. Sec. 46 of Education Act did not contemplate such a general ban. If the intention of the Government was to ban grant-in-aid scheme, it can be only through legislation by amending the Education Act. Through executive instruction, this virtual ban cannot be imposed against the provisions of Sec. 46 of Education Act. I, therefore, consider that the impugned Memo is not in conformity with Sec. 46 of Education Act and being an executive instruction, cannot supersede Sec. 46 of Education Act.
32. Ordinarily, the Government institutions cannot be compared with private institutions and lack of parity between the organs of the two institutions cannot be treated as an unreasonable clarification. However, in the present case, admittedly, Mandal Parishad and Zilla Parishad Schools also have been receiving grant-in-aid. Consequently, so far as grant-in-aid schemes are concerned, those schools stand on the same footing as private institutions. Filling up of the grant- in-aid pots in such schools and restraining the private institutions from filling up of the grant-in-aid vacancies at the same time is indeed unreasonable discrimination prohibited by Article 14 of the Constitution of India. Even on this count, I agree with the contention of the learned counsel for the petitioners that the impugned Memo is violative of Article 14 of the Constitution of India.
From the above judgment, it is evident that the contention of the 3rd respondent that the recruitment of the petitioner was during the ban period could not be sustained. Insofar as the issue of the violation of G.O.Ms.No.1 is concerned, the said order is blissfully silent about all the previous instances, when certain similarly placed persons had been given exemption. Indeed, neither in the pleadings, nor during the course of submissions, was it denied by the respondent authorities.
Keeping in mind the generosity of the State in extending the benefit to other similarly placed persons, as has been emphatically demonstrated by the petitioner, this Court, still, certainly does not wish to disturb the principle that the authorities cannot be compelled to perpetuate an illegality in the name of parity of treatment. At the same time, this Court, however, hastens to add that unless the previous anomalies of appointments or regularizations by way of ratification, etc., have been rectified, the respondent authorities cannot insouciantly claim that what they earlier did was illegal and that they would not be tied down to their past aberration. If it is a persistent phenomenon, it binds the authorities, since they bargained for it; lest it should amount to permitting the authorities to be selectively discriminatory, which is an anathema in the regime of rule of law.
The petitioner has already approached this Court twice over, but without much success. Even when an earlier writ petition was disposed of by this Court, giving rise to contempt proceedings for the alleged non-compliance, the respondent authorities did represent before this Court that the direction of this Court had been complied with. In fact, it was based on the order passed by the 4th respondent. Having tided over the contempt proceedings, the respondent authorities now have raised a new bogey that the petitioners initial appointment was bad and that it was made when the ban had been in force. It was demonstrated by the petitioner that there had been many exceptions to the rule and that many similarly placed persons had their services ratified.
Indeed, no mandamus shall lie to an authority to deviate from any statutory scheme, legislative or administrative. At the same time, in view of the peculiar facts of the case, at this length of time, and after these many rounds of litigation, more particularly, based on the promise held out by the respondent authorities, as had been evident from the communication of the 4th respondent, this case stands on a different footing.
After a series of directions to consider the case of the petitioner ending in futility or being made to perish on the altar of expedient technicality, this Court poses unto itself a question whether a positive mandamus can be given to the respondent authorities. It may be seen that in Commissioner of Police v. Gordhandas Bhanji , the Honble Supreme quoted with approval the judicial dictum of the House of Lords in Julius v. Lord Bishop of Oxford , to the effect:
There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.
It is further profitable to examine the ratio as has been laid down by the Honble Supreme Court in CAG v. K.S. Jagannathan . Having examined both the British and Indian precedents, their Lordships have held as follows:
20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion.
The same view has been echoed by this Court in Smt. Tahera Bee V. A.P. Agricultural University, Rajendranagar, Hyderabad, rep. by its Registrar and others . This Court has held:
The normal practice is to direct the concerned respondents to consider the candidature of the successful petitioners for a post or for a promotion. Here is a case where there is absolutely no controversy or dispute as regards the basic facts. Even according to the respondents 1 and 2, the petitioner is senior to the 3rd respondent and she has been denied appointment solely on the ground that in a test conducted by them, she secured lesser marks than the one secured by the 3rd respondent and that is totally an irrelevant consideration on the part of the respondents 1 and 2 to deny the appointment to the petitioner. Since there is no dispute or controversy over these facts, there is nothing wrong in directing the respondents 1 and 2 to appoint the petitioner to any of the posts which are included in Group-I services under the Regulations.
For the aforesaid reasons, the proceedings of the respondent- Regional Joint Direct of School Education, Guntur, in Rc.No.5899/ A6/2004, dated 18.12.2006 are hereby set aside. Consequently, the respondent authorities are further directed to ratify the appointment of the petitioner as Gr.II Hindi Pandit in the 5th respondent school in the aided-category in terms of the 4th respondents proceedings in Rc.No.1129/B4/2003, dated 30.07.2005.
Accordingly, the writ is allowed. No order as to costs. As a sequel, miscellaneous petitions, if any pending in this writ petition, shall stand closed.
__________________________ DAMA SESHADRI NAIDU, J Date: 19.03.2014